Standing Rock Dispute Presents Issues Unique to Indian Country

Since the Administration denied a Presidential (border crossing) Permit to the Keystone XL Project in 2015, a number of regional, state or local objections to new pipeline construction projects have emerged around the U.S. Most of the protests have continued themes relied on by opposition to Keystone, including the claim that fossil fuels should remain in the ground in order to limit the impacts of climate change. Groups such as the Sierra Club and Earth Justice have acknowledged that they selected Keystone as a tangible subject to carry their climate change message, which is otherwise rather abstract. Ironically, the Keystone and subsequent protests seem to focus on oil and gas as more emblematic of fossil fuels than coal, and they ignore the significant safety advantages in transporting energy by pipeline as compared to any other method. In addition, they ignore economic and safety factors that counsel in favor of new pipeline construction, and avoid discussion about the realistic availability of alternative energy resources provide a majority of U.S. demand in the near future.

The most recent new pipeline construction protest follows the Keystone legacy, but it sounds in quite different issues. Energy Transfer Partners (ETP) is proposing to complete the Dakota Access Pipeline project, which will carry Bakken crude from the Dakotas to the Patoka, Illinois hub. Part of the northern route runs near or on the Standing Rock Sioux Indian reservation in North Dakota, including a horizontal directional drill (HDD) under Lake Oahe, a reservoir constructed by the Army Corps of Engineers (COE) on the Missouri River. ETP obtained approval from the COE for the HDD under the Missouri River, and the Company made 140 route adjustments on or near the reservation to avoid potential cultural resources.

Nonetheless, in late summer 2016 the tribe filed suit against ETP, with assistance from Earth Justice, which was also involved in the Keystone controversy. The initial suit challenged the sufficiency of the COE’s consideration of the water crossing approval, but it also generally raised other issues about impacts to cultural resources and tribal sovereignty. Since the early 1800s, the Supreme Court has acknowledged that all federally recognized Indian tribes in the U.S. have sovereignty over their reservation lands and members. Federal Indian law has developed to retain this recognition while extending certain federal and state laws to reservations. Other federal laws, such as the Native Americans Grave Protection Act (NAGPRA) require construction projects to anticipate and respond to any cultural artifacts uncovered during construction, by halting construction and notifying both tribal interests and the federal government. NAGPRA applies off reservation as well, and is a consideration in all new pipeline construction projects. Similarly, the National Historic Preservation Act (NHPA) applies both on and off reservations, and claims under the NHPA have been raised in the Standing Rock case.

On Friday, September 9, 2016, a D.C. federal court denied Standing Rock’s request for an injunction to halt ETP’s construction of the HDD and other activities on the reservation. In an unprecedented move, the Administration had three separate federal agencies countermand the court’s decision within a matter of hours. The COE, Department of Justice and the Department of the Interior (charged with oversight of Indian lands) all declared a halt in construction of the Dakota Access Pipeline, stating that the COE would conduct a further review of its decisions on the HDD. The Administration’s action essentially overrules a federal court and stops pipeline construction that has otherwise been deemed compliant with applicable law. Like the Keystone decision, this is more of a political act than a legal determination.

The unprecedented Administration action on September 9, 2016 differs from the Keystone political intervention, however. It was not so much another validation of the kind of political decision making displayed in Keystone, and not so much another validation of the climate change movement’s use of pipelines as a stalking horse for climate change issues. Although the Standing Rock issues do challenge COE approval of water crossings, and federal decision-making under the NHPA, NEPA and related statutes, Standing Rock presents issues more unique to tribal lands and interests. In creating the Oahe Reservoir, the COE flooded areas of former Standing Rock settlement and grave sites. Although ETP has proposed that its HDD parallel an existing pipeline, thus passing through previously disturbed ground, the fact that the crossing will traverse previous tribal settlements raises issues different than most environmental or procedural challenges to water crossing. Construction on or near reservation lands, in general, requires more consultation and anticipation of cultural resource and sovereignty issues. Indeed, tribes from around the country have strongly supported the Standing Rock opposition to the pipeline route, but more due to concerns about development on or near Indian lands (that could affect cultural issues, environmental impacts and drinking water supplies), than due to climate change issues; requesting early consultation on pipeline and other projects based on tribal sovereignty more than environmental law.

It will likely be late 2017 before the courts and the agencies begin to issue decisions on the claims presented in the Standing Rock matters. In the interim, there are several practical considerations for pipeline operators planning new construction. The most obvious lesson is simply that route planning considerations become more complicated over time. Thirty or forty years ago, construction projects did not need to consider wetland crossings in much depth, but as the law evolved to expand the definition of wetlands, that issue is now prominent in all new pipeline construction project planning. In regard to construction involving tribal lands, the law has not changed as much as public awareness and public interest group opposition have increased with regard to new pipeline construction. Project planners will undoubtedly now place much more attention to any routes proposed to be on or near tribal lands. The climate change movement will inevitably seize on the Standing Rock challenge to claim as its own success, but time will likely show that the issues are more focused on tribal and Indian law concerns. Issues for the future will be to anticipate challenges to new construction and to encourage a dialogue based more on facts than slogans, which requires ready and thoughtful response to all concerns as raised.

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